MASTER LOAN AGREEMENT
EXHIBIT
10.1
Equipment
Finance, Inc.
1.0
PARTIES, COLLATERAL AND OBLIGATIONS
1,1
This
Agreement is dated as of May 08, 2007. For valuable consideration, the receipt
and sufficiency of which are hereby acknowledged Champion Industries, Inc.
(hereinafter called "Debtor") with offices at 0000 Xxxxx Xxxxxx, Xxxxxxxxxx,
XX
00000, intending to be legally bound, hereby promises to pay to U.S. Bancorp
Equipment Finance, Inc., an Oregon corporation having offices at XX Xxx 000000,
Xxxxxxxx, XX 00000-0000 (hereinafter called "Secured Party"), any amounts
set
forth on any Schedule to Master Loan Agreement hereunder (the "Schedule(s)")
and
grants a security interest in and assigns, transfers and sets over to Secured
Party and to the successors and assigns thereof, the property specified in
any
Schedule hereunder wherever located, and any and all proceeds thereof, insurance
recoveries, and all replacements, additions, accessions, accessories and
substitutions thereto or therefore (hereinafter called the "Collateral").
The
security interest granted hereby is to secure payment of any and all liabilities
or obligations of Debtor to the Secured Party, matured or unmatured, direct
or
indirect, absolute or contingent, heretofore arising, now existing or hereafter
arising, and whether under this Agreement or under any other writing between
Debtor and Secured Party (all hereinafter called the "obligations" and/or
the
"liabilities").
1.2
Joint
and Several Liability; Payment Terms. In the event there is more than one
Debtor, all obligations shall be joint and several obligations of all Debtors
regardless of the source of Collateral or the particular Debtor with which
the
obligation originated, and each Debtor waives any surety defenses that it
might
raise with respect to any other Debtor. Interest shall be calculated on the
basis of a 360-day year. All payments on any Schedule hereunder shall be
made in
lawful money of the United States at such address as the Secured Party may
designate to Debtor in writing from time to time. In no event shall any Schedule
hereunder be enforced in any way which permits Secured Party to collect interest
in excess of the maximum lawful rate. Should interest collected exceed such
rate, Secured Party shall refund such excess interest to Debtor. In such
event,
Debtor agrees that Secured Party shall not be subject to any penalties for
contracting for or collecting interest in excess of the maximum lawful
rate.
1.3
Late
Charge. If any of the obligations remains overdue for more than ten (10)
days,
Debtor hereby agrees to pay on demand, as a late charge, an amount equal
to the
lesser of (i) five percent (5%) of each such overdue amount; or (ii) the
maximum
percentage of any such overdue amount permitted by applicable law as a late
charge. Debtor agrees that the amount of such late charge represents a
reasonable estimate of the cost to Secured Party of processing a delinquent
payment and that the acceptance of any late charge shall not constitute a
waiver
of default with respect to the overdue amount or prevent Secured Party from
exercising any other available rights and remedies.
2.0
WARRANTIES AND COVENANTS OF DEBTOR: Debtor hereby represents, warrants and
covenants that:
2.]
Business Organization Status and Authority. (i) Debtor is duly organized,
validly existing and in good standing under the laws of the state of its
organization and is qualified to do business in all states and countries
in
which such qualification is necessary; (ii) Debtor has the lawful power and
authority to own its assets and to conduct the business in which it is engaged;
and to execute and comply with the provisions of this Agreement and any related
documents (collectively, the "Financing Documents"); (iii) the execution
and
delivery of the Financing Documents have been duly authorized by all necessary
action, and the Financing Documents constitute valid, legal and binding
agreements, enforceable in accordance with their terms; (iv) no authorization,
consent, approval, license or exemption of, or filing or registration with,
any
or all of the owners of Debtor or any governmental entity was, is or will
be
necessary to the valid execution, delivery, performance or full enforceability
of the Financing Documents. Except as specifically disclosed to Secured Party,
Debtor utilizes no trade names in the conduct of its business and/or has
not
changed its name within the past five years. Debtor shall not change its
state
of organization, headquarters or residence without providing prior written
notice to Secured Party. Debtor shall give written notice to Secured Party
within 30 days of any termination or revocation of Debtor's existence by
its
state of organization.
2.2
Merger; Transfer of Assets. Debtor shall not consolidate or merge with or
into
any other entity, liquidate or dissolve, distribute, sell, lease, transfer
or
dispose of all of its ownership interests, properties or assets or any
substantial portion thereof other than in the ordinary course of its business,
unless the Secured Party shall give its prior written consent, and the
surviving, or successor entity or the transferee of such assets, as the case
may
be, shall assume, by a written instrument which is legal, valid and enforceable
against such surviving or successor entity or transferee, all of the obligations
of Debtor to Secured Party or any affiliate of Secured Party.
2.3
No
Violation of Covenants or Laws. Debtor is not party to any agreement or subject
to any restriction which materially and adversely affects its ability to
perform
its obligations under the Financing Documents. The execution of and compliance
with the terms of the Financing Documents does not and will not (i) violate
any
provision of law, or (ii) conflict with or result in a breach of any order,
injunction, or decree of any court or governmental authority or the formation
documents of Debtor, or (iii) constitute or result in a default under any
agreement, bond or indenture by which Debtor is bound or to which any of
its
property is subject, or (iv) result in the imposition of any lien or encumbrance
upon any of Debtor's assets, except for any liens created under the Financing
Documents.
2.4
Accurate Information. All financial information submitted to the Secured
Party
in regard to Debtor or any shareholder, officer, director, member, or partner
thereof, or any guarantor of any of the obligations thereof, was prepared
in
accordance with generally accepted accounting principles, consistently applied,
and fairly and accurately depicts the financial position and results of
operations of Debtor or such other person, as of the respective dates or
for the
respective periods, to which such information pertains. Debtor had good,
valid
and marketable title to all the properties and assets reflected as being
owned
by it on any balance sheet of Debtor submitted to Secured Party as of the
date
thereof.
2.5
Judgments; Pending Legal Action. There are no judgments outstanding against
Debtor, and there are no actions or proceedings pending or, to the best
knowledge of Debtor, threatened against or affecting Debtor or any of its
properties in any court or before any governmental entity which, if determined
adversely to Debtor, would result in any material adverse change in the
business, properties or assets, or in the condition, financial or otherwise,
of
Debtor or would materially and adversely affect the ability of Debtor to
satisfy
its obligations under the Financing Documents.
2.6
No
Breach of Other Agreements; Compliance with Applicable Laws. Debtor is not
in
breach of or in default under any loan agreement, indenture, bond, note or
other
evidence of indebtedness, or any other material agreement or any court order,
injunction or decree or any lien, statute, rule or regulation. The operations
of
Debtor comply with all laws, ordinances and. governmental rules and regulations
applicable to them. Debtor has filed all federal, state and municipal income
tax
returns which are required to be filed and has paid all taxes as shown on
said
returns and on all assessments billed to it to the extent that such taxes
or
assessments have become due. Debtor does not know of any other proposed tax
assessment against it or of any basis for one.
2.7
Sale
Prohibited. Debtor shall not sell. dispose of or offer to sell or otherwise
transfer the Collateral or any interest therein without the prior written
consent of Secured Party.
2.8
Location of Collateral. The Collateral shall be kept primarily at the
location(s) shown on the Schedule(s) hereunder (unless the Collateral is
mobile,
in which case it may be moved in the ordinary course of business), and Debtor
shall give prompt written notice to Secured Party of any change in the
location(s) of the Collateral. Notwithstanding the foregoing, the Collateral
shall not be moved outside the United States without Secured Party's prior
written consent.
2.9
Collateral not a Fixture. The Collateral is not attached, and Debtor shall
not
permit the Collateral to become attached, to real estate in such a way that
it
would be considered part of the realty or designated a "fixture."
Notwithstanding any presumption of applicable law, and irrespective of any
manner of attachment, the Collateral shall not be deemed real property but
shall
retain its character as personal property. However, Debtor shall at the option
of Secured Party furnish the latter with waiver(s) in recordable form, signed
by
all persons having an interest in the real estate, of any interest in the
Collateral which is or might be deemed to be prior to Secured Party's
interest.
2.10
Perfection of Security Interest. Except for (i) the security interest granted
hereby and (ii) any other security interest previously disclosed by Debtor
to
Secured Party in writing, Debtor is the owner of the Collateral free from
any
adverse lien, security interest or encumbrance. Debtor shall defend the
Collateral against all claims and demands of all persons at any time claiming
any interest therein. At the request of Secured Party, Debtor shall execute,
acknowledge and deliver to Secured Party any document or instrument required
by
Secured Party to further the purposes of the Financing Documents. Debtor
hereby
authorizes Secured Party to file any financing statement(s) and to be named
as
lienholder on any vehicle title(s) needed to perfect Secured Party's interest
in
the Collateral, including (without limitation) any fixture filings and any
amendments and continuation statements thereto pursuant to the Uniform
Commercial Code, in form satisfactory to Secured Party, and shall pay the
cost
of filing the same in all public offices where filing is deemed by Secured
Party
to be necessary or desirable.
2.11
Insurance. Unless otherwise agreed, Debtor shall have and maintain insurance
from financially sound carriers at all times with respect to all Collateral
against damage and other risks with such coverage and containing such terms,
in
such form, for such periods and written by such companies as shall be
satisfactory to Secured Party; each insurance policy shall name Secured Party
as
lender's loss payee and shall be payable to Secured Party and Debtor as their
interests may appear; all policies of insurance shall provide for a minimum
of
ten days' written cancellation notice to Secured Party; Debtor shall furnish
Secured Party with certificates or other evidence satisfactory to Secured
Party
of compliance with the foregoing insurance provisions.
2.12
Use
of the Collateral. Debtor shall use the Collateral for business purposes
only
and operate it by qualified personnel in accordance with applicable
manufacturers' and regulatory maintenance and performance standards. Debtor
shall adhere to reasonable practices for Debtor's industry and the type of
Collateral, for security against terrorism and other risks. Debtor shall
keep
the Collateral free from any adverse lien or encumbrance (and shall promptly
notify Secured Party of any attachment of any such lien or any seizure or
levy)
and in good working order, condition and repair and shall not waste or destroy
the Collateral or any part thereof; Debtor shall keep the Collateral
appropriately protected from the elements, and shall furnish all required
parts
and servicing (including any contract service necessary to maintain the benefit
of any warranty of the manufacturer); and Debtor shall not use the Collateral
in
violation of any statute, ordinance, regulation or order. Secured Party may
examine and inspect the Collateral and any and all books and records of Debtor
during business hours at any time; such right of inspection shall include
the
right to copy Debtor's books and records and to converse with Debtor's officers,
employees, agents, and independent accountants.
2.13
Taxes and Assessments. Debtor shall pay promptly when due all taxes,
assessments, levies, imposts, duties and charges, of any kind or nature,
imposed
upon the Collateral or for its use or operation or upon this Agreement or
upon
any instruments evidencing the obligations.
2.14
Financial Statements. Debtor shall furnish Secured Party within 120 days
after
the close of each fiscal year of Debtor, its financial statements (including,
without limitation, a balance sheet, a statement of income, a statement of
cash
flow, a statement of changes in equity, and notes to financial statements)
for
the immediately preceding fiscal year, setting forth the corresponding figures
for the prior fiscal year in comparative form, all in reasonable detail without
any qualification or exception deemed material by Secured Party. Such financial
statements shall be prepared at least as a review by Debtor's independent
certified accountants and, if prepared as an audit, shall be certified by
such
accountants. Within 45 days after the close of each other quarter of Debtor,
Debtor shall deliver to Secured Party true and complete copies of its
management-prepared financial statements for the immediately preceding quarter.
Debtor shall also furnish Secured Party with any other financial information
(including tax returns) deemed reasonably necessary by Secured Party. Each
financial statement submitted by Debtor to Secured Party shall be prepared
in
accordance with generally accepted accounting principles consistently applied
and shall fairly and accurately present the Debtor's financial condition
and
results of operations for the period to which it pertains.
3.0
EVENTS OF DEFAULT
3.1
Each
of the following shall be considered an Event of Default: (i) failure on
the
part of Debtor to promptly perform in complete accordance with its
representations, warranties and covenants made in this Agreement or in any
other
agreement with Secured Party, including, but not limited to, the payment
of any
liability, with interest, when due, or default by Debtor under the provisions
of
any other material agreement to which Debtor is party; (ii) the death of
Debtor
if an individual or the dissolution of Debtor if a business organization;
(iii)
the filing of any petition or complaint under the federal Bankruptcy Code
or
other federal or state acts of similar nature, by or against Debtor, or an
assignment for the benefit of creditors by Debtor, (iv) an application for
or
the appointment of a receiver, trustee or conservator, voluntary or involuntary,
by or against Debtor or for any substantial assets of Debtor; (v) insolvency
of
Debtor under either federal or state law or applicable principles of equity;
(vi) entry of Judgment, issuance of any garnishment or attachment, or filing
of
any lien, claim or government attachment against the Collateral or which,
in
Secured Party's sole discretion, might impair the Collateral; (vii) the
determination by Secured Party that a material misrepresentation of fact
has
been made by Debtor in this Agreement or in any writing supplementary or
ancillary hereto; (viii) a determination by Secured Party that Debtor has
suffered a material adverse change in its financial condition, business or
operations from the date of this Agreement; (ix) bankruptcy, insolvency,
termination, death, dissolution or default of any guarantor for Debtor; (x)
any
actual or anticipated (in Secured Party's reasonable discretion) unauthorized
revocation, nonrenewal or termination of a letter of credit, surety bond
or
other instrument issued for the benefit of Secured Party as additional security
for the obligations of Debtor hereunder; or (xi) any unauthorized filing
by
Debtor of a termination statement for any financing statement filed by Secured
Party.
4.0
REMEDIES
4.1
Upon
the happening of any Event of Default which is not cured within ten (10)
days or
at any time thereafter: (i) all liabilities of Debtor shall, at the option
of
Secured Party, become immediately due and payable; (ii) Secured Party shall
have
and may exercise all of the rights and remedies granted to a secured party
under
the Uniform Commercial Code; (iii) Secured Party shall have the right,
immediately, and without notice or other action, to set-off against any of
Debtor's liabilities to Secured Party any money owed by Secured Party in
any
capacity to Debtor, whether or not due; (iv) Secured Party may proceed with
or
without judicial process to take possession of all or any part of the
Collateral; Debtor agrees that upon receipt of notice of Secured Party's
intention to take possession of all or any part of said Collateral, Debtor
shall
do everything necessary to make same available to Secured Party (including,
without limitation, assembling the Collateral and making it available to
Secured
Party at a place designated by Secured Party which is reasonably convenient
to
Debtor and Secured Party); and so long as Secured Party acts in a commercially
reasonable manner, Debtor agrees to assign, transfer and deliver at any time
the
whole or any portion of the Collateral or any rights or interest therein
in
accordance with the Uniform Commercial Code and without limiting the scope
of
Secured Party's rights thereunder; (v) Secured Party may sell the Collateral
at
public or private sale or in any other commercially reasonable manner and,
at
the option of Secured Party, in bulk or in parcels and with or without having
the Collateral at the sale or other disposition, and Debtor agrees that in
case
of sale or other disposition of the Collateral, or any portion thereof, Secured
Party shall apply all proceeds first to all costs and expenses of disposition,
including attorneys' fees, and then to Debtor's obligations to Secured Party;
and (vi) Secured Party may elect to accept the Collateral or any part thereof
in
satisfaction of all sums due from Debtor. All remedies provided in this
paragraph shall be cumulative. Secured Party may exercise anyone or more
of such
remedies in addition to any and all other remedies Secured Party
may
have
under any applicable law or in equity.
4.2
Disposition; Expenses. Any notification of a sale or other disposition of
Collateral or of other action by Secured Party required to be given by Secured
Party, will be sufficient and deemed reasonable if given personally, mailed,
or
delivered by facsimile transmission or overnight carrier not less than ten
(10)
days prior to the day on which such sale or other disposition will be made
or
action taken. Upon an Event of Default, any amounts due and to become due
hereunder shall, without notice, bear interest, from the date such amounts
are
due until paid, at a rate (the "Default Rate") which is the lesser of: (i)
the
maximum rate per annum which Secured Party is permitted by law to charge,
or
(ii) the greater of: (y) eighteen percent (18%) per annum, or (z) five percent
(5%) per annum over the prime rate which is announced from time to time by
U.S.
Bank National Association to be its prime rate. Debtor shall pay all reasonable
expenses of realizing upon the Collateral hereunder and collecting all
liabilities of Debtor to Secured Party, including any collection agency fee.
In
any interpretation or enforcement of the Financing Documents or any dispute
related thereto or to the relationship between the parties, Debtor shall
pay
Secured Party's legal expenses and reasonable attorneys' fees, including
any
incurred before and at trial, on appeal, in any other proceeding or without
any
litigation being filed.
5.0
MISCELLANEOUS
5.1
No
Implied Waivers; Entire Agreement This Agreement and any Schedule hereunder
are
non-cancelable and may not be prepaid. The waiver by Secured Party of any
default hereunder or of any provisions hereof shall not discharge any party
hereto from liability hereunder and such waiver shall be limited to the
particular Event of Default and shall not operate as a waiver of any other
or
subsequent default. No modification of this Agreement or waiver of any right
of
Secured Party hereunder shall be valid unless in writing and signed by an
authorized officer of Secured Party. No failure on the part of Secured Party
to
exercise, or delay in exercising, any right or remedy hereunder shall operate
as
a waiver thereof, nor shall any single or partial exercise of any right or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other right or remedy. The provisions of this Agreement and the rights
and remedies granted to Secured Party herein shall be in addition to, and
not in
limitation of those of any other agreement with Secured Party or any other
evidence of any liability held by Secured Party. This Agreement and any Schedule
hereunder (a "Transaction") embody the entire agreement between the parties
and
supersede all prior agreements and understandings relating to the same subject
matter, except in any case where the Secured Party takes an assignment from
a
vendor of its security interest in the same Collateral, in which case the
terms
of the Transaction shall be incorporated into the assigned agreement and
shall
prevail over any inconsistent terms therein but shall not be construed to
create
a new contract. If any of the Financing Documents are delivered to Secured
Party
by facsimile transmission, such documents (and signatures thereon) shall
be
treated as, and have the same force and effect as, originals.
5.2
Choice of Law; Waiver of Jury. The Financing Documents and the rights and
liabilities of the parties shall be governed by applicable federal law and
the
laws of the state of Oregon. Any legal action or proceeding with respect
to the
Financing Documents shall be brought in state court sitting in Portland,
Oregon,
and, by execution and delivery of the Financing Documents, each of the parties
consents to the jurisdiction of such court and waives any defense of lack
of
jurisdiction or inconvenient forum. Service of process by overnight courier
will
be sufficient to confer personal jurisdiction over the Debtor. SECURED PARTY
AND
DEBTOR EACH IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION
ARISING FROM OR RELATED TO ANY OF TIIE FINANCING DOCUMENTS.
5.3
Protection of the Collateral. At its option, Secured Party may discharge
taxes,
liens or other encumbrances at any time levied or placed on the Collateral,
may
pay for insurance on the Collateral and may pay for the maintenance and
preservation of the Collateral. Debtor agrees to reimburse Secured Party
on
demand for any payment made or any expense incurred by Secured Party pursuant
to
the foregoing authorization and to pay a fee for additional monitoring incurred
by Secured Party for Debtor's failure to maintain coverage or protection
as
provided herein. Any payments made by Secured Party shall be immediately
due and
payable by Debtor and shall bear interest at the Default Rate. Until default,
Debtor may retain possession of the Collateral and use it in any lawful manner
not inconsistent with the provisions of this Agreement and any other agreement
between Debtor and Secured Party and not inconsistent with any policy of
insurance thereon.
5.4
Binding Agreement; Time of the Essence. This Agreement shall be binding upon
and
shall inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, successors, and assigns. Time is of the essence
with
respect to the performance of Debtor's obligations under this Agreement and
any
other agreement between Debtor and Secured Party.
5.5
Enforceability. Any term, clause or provision of this Agreement or of any
evidence of indebtedness from Debtor to Secured Party which is unenforceable
in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remaining terms or clauses of such provision or the remaining provisions
hereof,
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such term, clause or provision in any
other
jurisdiction.
5.6
Notices. Any notices or demands required to be given herein shall be given
to
the parties in writing by facsimile transmission, or by overnight courier
or
United States mail (first class, express, certified or otherwise) at the
addresses set forth on page 1 of this Agreement or to such other addresses
as
the parties may hereafter substitute by written notice given in the manner
prescribed in this paragraph.
5.7
Additional Security. If there shall be any other collateral for any of the
obligations, or for the obligations of any guarantor thereof, Secured Party
may
proceed against and/or enforce any or all of the Collateral and such collateral
in whatever order it may, in its sole discretion, deem appropriate. Any
amount(s) received by Secured Party from whatever source and applied by it
to
any of the obligations shall be applied in such order of application as Secured
Party shall from time to time, in its sole discretion, elect.
6.0
ASSIGNMENT
6.1
SECURED PARTY MAY SELL OR ASSIGN
ANY AND ALL RIGHT, TITLE AND INTEREST IT HAS IN THE COLLATERAL AND/OR ARISING
UNDER THIS AGREEMENT. DEBTOR SHALL, UPON THE DIRECTION OF SECURED PARTY,
I)
EXECUTE ALL DOCUMENTS NECESSARY TO EFFECTIJATE SUCH ASSIGNMENT AND, 2) PAY
DIRECTLY AND PROMPTLY TO SECURED PARTY'S ASSIGNEE WITHOUT ABATEMENT, DEDUCTION
OR SET-OFF, ALL AMOUNTS WHICH HAVE BECOME DUE UNDER THE ASSIGNED AGREEMENTS.
SECURED PARTY'S ASSIGNEE SHALL HAVE ANY AND ALL RIGHTS, IMMUNITIES AND
DISCRETION OF SECURED PARTY HEREUNDER AND SHALL BE ENTITLED TO EXERCISE ANY
REMEDIES OF SECURED PARTY HEREUNDER. ALL REFERENCES HEREIN TO SECURED PARTY
SHALL INCLUDE SECURED PARTY'S ASSIGNEE (EXCEPT THAT SAID ASSIGNEE SHALL NOT
BE
CHARGEABLE WITH ANY OBLIGATIONS OR LIABILITIES HEREUNDER OR IN RESPECT HEREOF).
DEBTOR SHALL NOT ASSERT AGAINST SECURED PARTY'S ASSIGNEE ANY DEFENSE,
COUNTERCLAIM OR SET-OFF WHICH DEBTOR MAY HA VB AGAINST SECURED
PARTY.
6.2
DEBTOR SHALL NOT ASSIGN OR IN ANY
WAY DISPOSE OF ALL OR ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT
OR
ENTER INTO ANY AGREEMENT REGARDING ALL OR ANY PART OF THE COLLATERAL WITHOUT THE
PRIOR WRIITEN CONSENT OF SECURED PARTY. IN CONNECTION WITH THE GRANTING OF
SUCH
CONSENT AND THE PREPARATION OF NECESSARY DOCUMENTATION, A FEE SHALL BE
ASSESSED EQUAL TO ONE PERCENT (1%) OF 1HE TOTAL REMAINING BALANCE
THEN
DUE HEREUNDER. In the event that Secured Party has consented to any lease
of the
Collateral, Debtor hereby assigns and grants to Secured Party a security
interest in any and all rights under any lease(s), to secure all obligations
to
Secured Party, and Debtor shall deliver to Secured Party the original of
such
lease(s).
7.0
POWER
OF ATTORNEY
7.1
Debtor hereby appoints Secured Party as its attorney-in-fact to sign Debtor's
name and to make non-material amendments (including completing and conforming
the description of the Collateral) on any document in connection with this
Agreement, including any document necessary for processing vehicle
certificate(s) of title, and to obtain, adjust and settle any insurance required
by this Agreement and to endorse any drafts in connection with such
insurance.
8.0
NOTICE
8.1
Under Oregon law. most agreements. promises and commitments
made by Secured Party after October 3. 1989, concerning- loans and other
credit
extensions which are not for personal, family or household purposes or secured
solely by the Debtor's residence must be in writing, express
consideration
and
be
signed by Secured Party to be enforceable.
In
Witness Whereof, the parties, hereto
have caused this Agreement to be duly executed the 30th Day
of MAY ,
20
07
U.S.
Bancorp Equipment Finance, Inc. (SECURED PARTY)
By: _
An
Authorized Officer Thereof
9/06
Champion
Industries, Inc. (DEBTOR)
By:
/s/ Xxxxx X.
Xxxxxx
Authorized
Signer
Title: President
&
COO
[Missing
Graphic Reference] CERTIFICATE OF AUTHORITY (LEASE/LOAN)
Equipment
Finance, Inc.
I/WE
HEREBY CERTIFY to U.S. Bancorp Equipment Finance, Inc. (the "Creditor") that:
a)
I/we am/are the person(s) authorized to certify on behalf of Champion
Industries, Inc., a business entity (the “Company”) organized and maintaining
good standing under the laws of the State of West Virginia; b) the following
is
a true and correct copy of certain Resolutions duly adopted or voted by the
Board of Directors, Members or Managers, as appropriate, of the Company;
c) I/we
have placed a copy of such Resolutions in the official records of the Company;
d) such Resolutions have not been rescinded, amended, or otherwise altered
or
repealed; and e) such Resolutions are now in full force and effect and are
in
full compliance with the formation documents of the Company, as such may
have
been amended. The Company has resolved the following:
I)
That
the Company from time to time leases personal property and/or borrows money
or
otherwise obtains credit from Creditor and that the entire amount of leasing,
borrowing or credit under this resolution at anyone time, whether direct
or
indirect, absolute or contingent, shall be unlimited;
2)
That
anyone of the officers, agents, members, or managers designated below is
hereby
authorized to borrow money and to obtain credit and other financial
accommodations (including the leasing of personal property) for the Company;
and
to execute and deliver on behalf of the Company any and all documentation
required in connection therewith in such form and containing such terms and
conditions as the person(s) executing such documents shall approve as being
advisable and proper and in the best interests of the Company; and that the
execution thereof by such person(s) shall be conclusive evidence of such
approval; and. as security for the Company's obligations to Creditor to pledge,
assign, transfer, mortgage, grant a security interest in, hypothecate, or
otherwise encumber any and all property of the Company, whether tangible
or
intangible; and to execute and deliver all instruments of assignment and
transfer;
3)
That
any officer, member, manager, agent or employee of the Company is hereby
further
authorized to take any and all such other actions as may be necessary to
carry
out the intent and purposes of these Resolutions. and that any and all actions
taken by such person(s) to carry out such intent and purposes prior to the
adoption of these Resolutions are hereby ratified and confirmed by, and adopted
as the action of, the managers of the Company; and
4)
That
these Resolutions shall constitute a continuing authority to the designated
person or persons to act on behalf of the Company, and the powers and authority
granted herein shall continue until revoked by the Company and formal written
notice of such revocation shall have been given to Creditor. These Resolutions
do not supersede similar prior resolutions given to Creditor.
I/WE
HEREBY FURTHER CERTIFY that pursuant to the formation documents and any other
appropriate documents of the Company as may be necessary, the following named
person(s) have been properly designated and appointed to the
position(s)/office(s) indicated below, that such person(s) continue to hold
such
position(s)/office(s) at the time of execution of the documentation for the
transaction( s) with Creditor, and that the signature(s) of such person(s)
shown
below are genuine.
OFFICE NAME SIGNATURE
CFO XXXX
XXX /S/
XXXX
XXX
PRESIDENT XXXXX
XXXXXX /S/
XXXXX XXXXXX
I/WE
HEREBY FURTHER CERTIFY that, pursuant to the formation documents of the company,
and any other appropriate documents of the Company as may be necessary, I/we
have the power and authority to execute this Certificate on behalf of the
Company, and that I/we have so executed this Certificate on
the 30th day
of MAY , 20 07 . A copy of this
Certificate, which is duly signed and which is received by facsimile
transmission ("fax"), shall be deemed to be of the same force and effect
as the
original.
By:
/S/ Xxxxxx
Xxxxxx
Print
Name: Xxxxxx
Xxxxxx
Title:
Secretary
(Must
be certified by another officer or director other than the above authorized
signer)
6/02
ADDRESS
FOR ALL NOTICES:
XX
Xxx
000000 Xxxxxxxx, XX 00000 ~0789
SCHEDULE
TO MASTER LOAN
AGREEMENT
US
Bancorp
Equipment
Finance, Inc.
Champion
Industries, Inc.
0000
Xxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
$262,013.00
|
Effective
Date ___________________
|
Schedule
Number 822821-AFS
|
l.
THIS SCHEDULE is made between
Champion Industries, Inc. as Debtor, and U.S. Bancorp Equipment Finance,
Inc.,
(which, together with its successors and assigns, shall be called the "Secured
Party") pursuant to the Master Loan Agreement dated as of May 08, 2007 between
Debtor and Secured Party (the "Loan Agreement"), the terms of which (including
the definitions) are incorporated herein. The terms of the Loan Agreement
and
this Schedule together shall constitute a separate instrument. Capitalized
terms used but not defined herein are used with the respective meanings
specified in the Loan Agreement. If any terms hereof are inconsistent with
the
terms of the Loan Agreement, the terms hereof shall prevail.
2.
For value received, Debtor hereby
promises to pay to the order of Secured Party the principal amount of Two
Hundred Sixty Two Thousand Thirteen and Xxxx
00 Dollars
($262,013.00) with interest on any outstanding principal balance at the rate(s)
specified herein from the Effective Date hereof until this Schedule shall
have
been paid in full in accordance with the following payment schedule: Forty
Eight
(48) installments in the amount of $5,458.60 each plus the entire amount
of
interest accrued on this Schedule at the time of payment of each installment.
The first payment shall be due June 15, 2007 and a like payment shall be
due on the same day of each succeeding month thereafter until the
entire
principal and interest have been paid. At the time of the final installment hereon,
all unpaid
principal and interest shall be due and owing. Each payment shall be applied
first to accrued and unpaid interest, and the balance to the outstanding
principal hereof. As a result, such final installment may be substantially
more
or substantially less than the installments specified herein.
3.
Debtor promises to pay interest on
the principal balance outstanding at a rate of U.S. Bank National Association's
(Bank's) prime rate, as Bank's prime rate may vary from time to time.
Bank's prime rate is the rate of interest which Bank from time to time
identifies as its prime rate and is not, for example, the lowest rate of
interest which Bank collects from any borrower or class of borrowers. When
Bank's prime rate is applicable, the interest rate hereunder shall be adjusted
without notice upon each change in Bank's prime rate, but in no event shall
the
rate of interest be higher than allowed by law. Bank's prime rate is currently
8.25 percent.
4.
Secured Party may, from time to
time, in its sole discretion, increase or decrease the amount of unpaid
installments to an amount Secured Party deems necessary to amortize the
outstanding principal balance of this Schedule by the due date of the final
installment. Secured Party shall notify Debtor of each such change in writing.
Whether or not the installment amount is increased or decreased, Debtor
understands that, as a result of increases or decreases in the rate of interest
in accordance herewith, the final installment may be substantially more
or substantially less than the installments specified herein, but in no event
shall the rate of interest be higher than that allowed by law.
5.
Each Debtor, if more than one, and
all other parties who at any time may be liable hereon in any capacity, hereby
jointly and severally waive diligence, demand, presentment, presentment
for payment, protest, notice of protest and notice of dishonor of this Schedule,
and authorize the Secured Party, without notice, to grant extensions in the
time
of payment of and reductions in the rate of interest on any moneys owing
on this
Schedule.
6.
The
following property is hereby made Collateral for all purposes under the Loan
Agreement:
One
(1)
Xxxxxx Martini 0000 Xxxxxx Xxxxxx Xxxxxxxx, xxx XX00000
with HK75
Stitching Heads and Three Knife Trimmer; Compact Twin Feeders, sin NN28131
and sin
NN28132; Folder Feeder, s/n NN28135;
Hand
Feed Station-l Station, s/n
NN28225;
Trim Removal System, sin NN28227; KTA80 Compressor, sin
28229; and Belt Delivery, sin
NN28150;
One
(I) MBO X00 Xxxx Fold Plate
sin 16361;
TOGETHER
WITH ALL REPLACEMENTS, PARTS, REPAIRS, ADDITIONS, ACCESSIONS AND ACCESSORIES
INCORPORATED THEREIN OR AFFIXED OR ATTACHED THERETO AND ANY AND ALL PROCEEDS
OF
THE FOREGOING, INCLUDING, WITHOUT LIMITATION, INSURANCE RECOVERIES.
7.
The
Collateral hereunder shall be based at the following location(s):
0000
Xxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 4524 County: Xxxxxxxx
IN
WITNESS WHEREOF, Debtor has executed this Schedule this 30th day of
MAY , 2007
.
U.S.
Bancorp
Equipment
Finance, Inc.
By:
_
An
Authorized Officer Thereof
3/06
Champion
Industries, Inc.
Champion
Industries, Inc. (DEBTOR)
By:
_______/s/ Xxxxx X. Adkins_____
Authorized
Signer
Title: President
& COO
ADDRESS
FOR ALL NOTICES:
XX
Xxx 000000 Xxxxxxxx,
XX 00000-0000